Judge: David A. Rosen, Case: 21STCV28044, Date: 2022-08-26 Tentative Ruling

Case Number: 21STCV28044    Hearing Date: August 26, 2022    Dept: E

Case No:21STCV28044
Hearing Date:  08/26/2022 – 10:00am                               

Trial Date: 04/17/2023

Case Name: JOHN DOE, a minor by and through his Guardians Ad Litem, Whitney A Wade and Marianne Krawczyk v. FIVE ACRES – THE BOYS’ AND GIRLS AID SOCIETY OF LOS ANGELES COUNTY            , a California corporation; and DOES 1-100

TENTATIVE RULING ON DEMURRER AND MOTION TO STRIKE

Moving Party: Defendant, Five Acres – The boys’ and Girls’ Aid Society of Los Angeles County

Responding Party: Plaintiff, John Doe

(Oppo and Reply Submitted)

Proof of Service Timely Filed (CRC Rule 3.1300): ok
16/21 Court Days Lapsed (CCP 1005(b)): ok
Proper Address: ok

RELIEF REQUESTED
Defendant, Five Acres – The Boys and Girls’ Aid Society of Los Angeles County, demur to the Second Amended Complaint (“SAC”) as follows:

1.      Plaintiff’s Fourth Cause of Action for Premises Liability is uncertain and fails to state facts sufficient to constitute a cause of action.

2.      Plaintiff’s Fifth Cause of Action for Negligence Per Se based on Violation of Penal Code §11166 is uncertain and fails to state facts sufficient to constitute a cause of action.

PROCEDURAL
Meet and Confer
A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”  (Code Civ. Proc., §430.41, subd. (a).)  “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.”  (Code Civ. Proc., §430.41, subd. (a)(2).) Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (Id., §430.41(a)(4).)

Parties met and conferred but could not reach an agreement. (Decl. Metros ¶2.)

BACKGROUND
Five Acres provides a variety of services to children of families in crisis, including residential services and providing safe, temporary out-of-home care. Plaintiff, a minor, was referred to the residential program at Five Acres by the Department of Child and Family Services (DCFS), as such, Plaintiff resided at Five Acres on a compulsory, not voluntary, basis. Doe Perpetrator is a minor who was placed, and resided, in the Five Acres residential program by juvenile court order and/or by DCFS referral during the same time Plaintiff resided at Five Acres. While Plaintiff was residing in Defendant, Five Acres’, residential program, Plaintiff was sexually abused by Doe Perpetrator on several occasions – Doe Perpetrator forced Plaintiff to participate in oral copulation and during this incident a Five Acres staff member in charge of supervising Plaintiff’s cottage was asleep or on her cellphone during the incident. Doe Perpetrator coerced Plaintiff with threats of violence and death if Plaintiff did not perform sexual acts and Doe Perpetrator forced Plaintiff to comply with and to engage in sexual acts. Plaintiff alleges that Defendant knew or had reason to know of the unlawful sexual conduct by Doe Perpetrator. After learning there was video footage of Plaintiff orally copulating Doe Perpetrator, Plaintiff’s mother requested that Five Acres review all security camera footage form Plaintiff’s cottage and Five Acres never responded to the request. Further, when Plaintiff’s mother informed a supervisor about Doe Perpetrator, the supervisor responded that Plaintiff, “makes up stories when he thinks he’s in trouble.” In the presence of Plaintiff’s mother, the supervisor said to Plaintiff in a threatening manner, “The eye on the sky does not lie.” Plaintiff alleges that Five Acres has a pattern and practice of discouraging complaints made by youth in their care, and dismissing, without reason or proper investigation, claims of sexual abuse by children in their care. Plaintiff alleges Defendant engages in this pattern and practice in order to conceal evidence of sexual abuse experienced by its residents and to forestall Department of Child and Family Services inquiries into the ongoing abuse at Five Acres.

Plaintiff filed a First Amended Complaint (FAC) alleging nine causes of action: (1) Violation of California Child Victim Act (CCP §340.1); (2) Breach of Fiduciary Duty; (3) Violation of Penal Code §11166; (4) Violation of Penal Code §273a(a) & (b); (5) Premises Liability; (6) Intentional Infliction of Emotional Distress; (7) Negligence; (8) Negligent Supervision/Failure to Warn; and (9) Negligent Failure to Warn, Train, Or Educate Plaintiff. Defendant demurred to the first, third, fourth, and fifth causes of action.

On May 20, 2022, the Court ruled as follows: (1) Demurrer to the first cause of action sustained without leave to amend, (2) Demurrer to the third cause of action sustained with 20 days leave to amend granted, (3) Demurrer to fourth cause of action sustained with 20 days leave to amend, and (4) Demurrer to fifth cause of action sustained with 20 days leave to amend granted.

Plaintiff filed a SAC alleging seven causes of action: (1) Breach of Fiduciary Duty, (2) Intentional Infliction of Emotional Distress, (3) Negligent Supervision, Hiring, & Retention, (4) Premises Liability, (5) Negligence per se based on violation of Penal Code §11166, (6) Negligent Failure to Warn, Train, or Educate Plaintiff, (7) Negligence. Defendant now demurs to the fourth cause of action premises liability and fifth cause of action of negligence per se based on violation of penal code §11166.

LEGAL STANDARDS FOR DEMURRERS
Demurrer – Sufficiency
A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda, (2007) 147 Cal.App.4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)  The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….”  (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Code Civ. Proc., §§ 430.30, 430.70.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.) 

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts.  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  “All that is required of a plaintiff, as a matter of pleading … is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.”  (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) 

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.”  (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.)  Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.”  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  “Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Demurrer – Uncertainty
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her.  (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)  Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

 

 

ANALYSIS
Fourth Cause of Action – Premises Liability

Defendant argues as follows:

Plaintiff’s cause of action for premises liability is defective on the grounds that plaintiff does not allege a causal link between a defect on Five Acres’ property and the alleged assault by a minor on the property. A cause of action for premises liability must be based on either the nature of the property or the activity conducted on the property. See Eric J. v. Betty M. (1999) 76 Cal.App.4th 715, 721; Tanja H. v. Regents of Univ. of Cal. (1991) 228 Cal.App.3d 434, 439. These deficiencies were raised in a Demurrer to the First Amended Complaint which was sustained with leave to amend. Per movant/Defendant, Plaintiff’s premises liability cause of action remains unchanged in the SAC, despite the Court’s ruling.

 

In Eric J., the court held that a sexual predator’s mere presence on residential property could not be considered a dangerous condition on the property. (Eric J. 76 Cal.App.4th at 727). There, a perpetrator who was previously convicted of sexual assault developed a relationship with an eight-year-old (“victim”) and his mother and began inviting them to the perpetrator’s family gatherings at various nonpublic locations, such as the perpetrator’s relative’s homes and his father’s yacht. (Id). It was later revealed to the victim’s mother that on several occasions, the perpetrator had molested the victim during these family gatherings. (Id. at 718-719). The court concluded that none of the bases of premises liability were applicable as there was nothing about the nature of the activity conducted on the property (family gatherings), or the nature of the property (various homes and a yacht), to implicate liability for the crimes committed. (Id). Thus, the court affirmed the lower court’s grant of a nonsuit motion as to the plaintiff’s premises liability theory. (Id).

 

In Tanja H. v. Regents of University of California (1991) 228 Cal.App.3d 434, 439 (disapproved on other grounds by Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 634 n.7), the court affirmed a trial court’s dismissal regarding the plaintiff’s cause of action for premises liability where there was no causal link between an alleged dangerous condition and the criminal act of sexual assault that occurred in a college dormitory. There, the plaintiff sued a university after she was sexually assaulted in a university dormitory. (Id. at 435). The plaintiff alleged that there was a shattered light bulb on the dormitory stairwell where she was assaulted, giving rise to premises liability on part of the defendant university. (Id. at 439). The court held that “there was no meaningful causal connection between failing to more quickly fix a shattered lightbulb and the sexual assault,” reasoning that it was not the lack of safe illumination on the stairs that contributed to the sexual assault. (Id). Accordingly, the court held that the trial court correctly sustained the defendants’ demurer. (Id. at 442).

 

The only allegation that plaintiff uses in an attempt to plead a nexus between the property and the alleged assault is a vague allegation that the doe perpetrator had a history of sexual assaults, about which Five Acres knew or should have known. No details are provided and certainly not any that would suggest that it was a defect in the property that made the alleged assault of the plaintiff foreseeable. Put another way, plaintiff fails to allege any facts demonstrating a meaningful causal connection between the property (here, the home) or the activity conducted on the property (residing there) and the alleged assault by another minor. Without that, the cause of action for premises liability against Five Acres does not state a cause of action against them, and this Court should sustain this instant Demurrer.

 

DISCUSSION
The elements of a cause of action for premises liability are the same as those for negligence. (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207 citing Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998) Accordingly, the plaintiff must prove a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury. (Jones v. Awad, supra, 39 Cal.App.5th at 1207 citing Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 573.)

 

“The most common situation where landowners may be held liable in tort for the criminal actions of another person on their property merely because of their status as landowners entails commercial, business or otherwise public property, with the criminal action being tied in some way to either the nature of the business or the property, and in a context where the actual perpetrator of the crimes was personally unknown to the landowner.”(Eric J. v. Betty M. (1999) 76 Cal.App.4th 715, 720.)

 

“In ‘public’ or business property, liability has been allowed when there is something foreseeably dangerous about the nature of the activity conducted on the property or the property itself which fixes on the landowner the duty to take some sort of precaution (e.g., Cantwell [operation of a bar]). Or the area may be such that the presence of miscreants is generally a foreseeable risk (Isaacs [drug addicts drawn to emergency room in high-crime area], Francis T. [project was experiencing “crimewave”], O'Hara [rapist targeting females in particular apartment complex], Kwaitkowski [high-crime area, previous attack], Constance B. [highways breed “highwaymen”] , Zuniga [gangs in public housing project]), and Onciano [unguarded parking lot late at night6 ]), or the owner has in some way undertaken, as part of the organized activity on the land, care for the safety of the plaintiff as against criminal acts of third parties (Wallace [summer camp] and Winn [restaurant]).” (Eric J. V. Betty M. (1999) 76 Cal.App.4th 715, 721.)

 

This Court previously found that “Plaintiff has not adequately pled premises liability based on the criminal action being tied in some way to the nature of the business. Plaintiff alleged in an uncertain manner that there is an allegedly foreseeable danger about the nature of the activity conducted on the property itself which fixes on the landowner the duty to take some sort of precaution. This may or may not plead premises liability but does seem to plead Negligence.” (Minute Order 5-20-2022.) However, this Court now finds that Plaintiff has sufficiently alleged a cause of action for premises liability.

 

Although Defendant accurately points out that Plaintiff did not change the allegations pertaining to this cause of action, the Court notes that Plaintiff at least clarified in the body of the SAC that the premises liability was based upon the creation and maintenance of a dangerous condition. (See SAC p.16.)

 

Therefore, it is apparent to the Court that Plaintiff is basing its premises liability cause of action based on the duty to take reasonable precautions against foreseeable dangers.

“In ‘public’ or business property, liability has been allowed when there is something foreseeably dangerous about the nature of the activity conducted on the property or the property itself which fixes on the landowner the duty to take some sort of precaution. (Eric J. v. Betty M. (1999) 76 Cal.App.4th 715, 721.)

 

Defendant’s reliance on Eric J. v. Betty M. and Tanja H. v. Regents of Univ. of Cal. is inapposite in the instant context of what appears to be business property. Plaintiff alleges that Defendant is a corporation, and Plaintiff alleged that “Defendant Five Acres…were in possession of the property where the Plaintiff was assaulted by the Doe Perpetrator, and had the right to manage, use and control that property.” (SAC ¶63.) In Eric J. v. Betty M, the case did not involve business property; it involved criminal activity on nonpublic residential property against social guests of the owners who live or whose tenants rent there. Further, Tanja H. is not applicable in the instant context. “Appellant also attempts to assert a claim based in part upon a premises liability theory: She claims respondents are liable for the rapes because there was a shattered light bulb on a landing in the stairwell. We can certainly agree respondents might be liable if appellant had stumbled in a darkened stairway, or even if she had been assaulted by someone lying in wait in the darkness… However, there was no meaningful causal connection here between failing to more quickly fix a shattered light bulb and the sexual assault which began in one dormitory room, continued on the landing, and continued in two other rooms. No assailant was lurking in the dark; appellant's attackers were acquaintances she first encountered in their lighted rooms, where they overcame her resistance..” (Tanja H. v. Regents of Univ. of Cal. (1991) 228 Cal.App.3d 434, 439.) 

 

Duty

Here, Plaintiff adequately pled duty.

 

“At all times herein mentioned, Defendant FIVE ACRES, and DOES 1 through 100, had knowingly undertaken an obligation to safely house vulnerable children and knew that they were housing children who were at risk of being abused and traumatized, and/or were at risk of abusing and traumatizing others, in light of the traumatic history that led to theses youth’s placement at FIVE ACRES.” (SAC ¶64.)

 

“It was foreseeable to Defendant FIVE ACRES, and DOES 1 through 100, that the children housed on its premises, including PLAINTIFF, would be at risk of abuse or traumatization without reasonable supervision at all times. Defendant FIVE ACRES, and DOES 1 through 100, therefore had a duty to provide such supervision.” (SAC ¶65.)

 

“Plaintiff is informed and believes and based thereon alleges that at all times herein mentioned, Defendant FIVE ACRES, and DOES 1 through 100, knew specifically, or should have known, that the Doe Perpetrator had a history of committing sexual assaults against minors, and that any minor at the FIVE ACRES facility was at risk of being sexually assaulted by the Doe Perpetrator.” (SAC ¶66.)

 

“Plaintiff is informed and believes and based thereon alleges that at all times herein mentioned, Defendant FIVE ACRES, and DOES 1 through 100, knew or should have known the Doe Perpetrator was repeatedly committing sexual assaults against children.” (SAC ¶67.)

 

“Plaintiff is informed and believes and based thereon alleges that Defendant FIVE ACRES, and DOES 1 through 100, knew or should have known that there were multiple complaints against the Doe Perpetrator for various incidents of sexual misconduct, as several of other minors were victimized by the Doe Perpetrator and there was a witness to one of the incidents wherein Doe Perpetrator forced PLAINTIFF to engage in oral copulation with him. It was foreseeable to Defendant FIVE ACRES, and DOES 1 through 100, that the Doe Perpetrator would sexually assault children if it continued to allow the Doe Perpetrator to have access to and/or contact and interaction with other children at FIVE ACRES in the absence of reasonable supervision at all times.” (SAC ¶68.)

 

“It was foreseeable to Defendant FIVE ACRES, and DOES 1 through 100, that the sexual assaults being committed by the Doe Perpetrator would continue if Defendant FIVE ACRES continued to house the Doe Perpetrator in the same premises as the PLAINTIFF and/or other minor children. It was also foreseeable by Defendant FIVE ACRES, and DOES 1 through 100, that Doe Perpetrator would harm other youth, including PLAINTIFF is he, and the other youth, were not provided with reasonable supervision at all times.” (SAC ¶69.)

 

“Because it was foreseeable that the sexual assaults being committed by the Doe Perpetrator would continue if Defendant FIVE ACRES, and DOES 1 through 100, continued to allow him to be housed in the same premises as the PLAINTIFF and/or other young children, and/or if Defendant FIVE ACRES, and DOES 1 through 100, failed to provide reasonable supervision of Doe Perpetrator and the youth residing at FIVE ACRES at all times, Defendant FIVE ACRES, and DOES 1 through 100, owed a duty of care to all children, including the PLAINTIFF, exposed to the Doe Perpetrator. Defendant FIVE ACRES, and DOES 1 through 100, also owed a heightened duty of care to all children, including PLAINTIFF, because of their young age and because of their vulnerable situations/conditions as traumatized youth.” (SAC ¶70.)

 

Breach
“By allowing Doe Perpetrator to be housed on the same premises with young children, by failing to provide reasonable supervision at all times to protect all of the children, including PLAINTIFF, by failing to provide reasonable supervision at all times to prevent Doe Perpetrator from harming others, and by failing to warn children and their families of the threat posed by the Doe Perpetrator, Defendant FIVE ACRES, and DOES 1 through 100, breached their duty of care to all children, including the PLAINTIFF.” (SAC ¶71.)

 

Therefore, Plaintiff adequately alleged the breach element.

Causation

“The dangerous conditions created by Defendant FIVE ACRES, and DOES 1 through 100, were the proximate cause of PLAINTIFF’s injuries and damages.” (SAC ¶74.)

 

Therefore, Plaintiff adequately alleged the causation element.

Damages

“ As a direct result of the wrongful conduct alleged herein, PLAINTIFF has suffered, and continues to suffer, among others, great pain of mind and body, shock, emotional distress, physical, cognitive, and behavioral manifestations of emotional distress, embarrassment, loss of self-esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer spiritually; was prevented and will continue to be prevented from performing PLAINTIFF’s daily activities and obtaining the full enjoyment of life; has sustained and continues to sustain loss of future earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling.” (SAC ¶75.)

 

“Plaintiff is informed and believes and based thereon alleges that Defendants FIVE ACRES and DOES 1 through 100 and their managing agents, officers, and/or directors had advance knowledge of the unfitness of their employees, subcontractors, and agents and employed or subcontracted them with a conscious disregard of the rights or safety of PLAINTIFF and the other youth housed in FIVE ACRES residential program. PLAINTIFF is informed and believes, and based thereon alleges, that Defendant FIVE ACRES and DOES 1 through 100 and their managing agents, officers, and/or directors authorized, adopted, or ratified the wrongful and unlawful conduct of their employees, subcontractors, and agents and/or are personally guilty of oppression, fraud, or malice. As such, Plaintiff is entitled to recover punitive damages from all Defendants in an amount according to proof.” (SAC ¶76.)

 

Therefore, Plaintiff has adequately alleged the damages element.

 

Unavailing Argument
Defendant argues that “the cause of action for premises liability should also be subsumed in the cause of action for negligence, as ‘premises liability is a form of negligence.’ Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619, citing Rowland v. Christian (1968) 69 Cal.2d 108.”

However, Defendant does not accurately cite Brooks v. Eugene.

Brooks states, “Premises liability is a form of negligence based on the holding in Rowland v. Christian, supra, 69 Cal.2d 108, and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence. (BAJI No. 8.00 (1983 rev.).)” (Brooks v. Eugene Burger Management Corp. (1989) 2215 Cal.App.3d 1611, 1619.) Thus, the opinion in Brooks does not preclude a plaintiff from alleging both premises liability and general negligence under the factual scenario alleged here.

TENTATIVE RULING: Defendant’s demurrer as to the fourth cause of action for premises liability is OVERRULED.

 

 

Fifth Cause of Action – Negligence Per Se based on violation of Penal Code §11166


            Evidentiary Doctrine

Defendant argues that negligence per se is an evidentiary doctrine codified in Evidence Code §669, and as an evidentiary doctrine it does not provide a private right of action for violation of statute. Defendant argues it instead operates to establish a presumption of negligence for which the statute serves the subsidiary function of providing evidence of an element of a preexisting common law cause of action. Defendant argues that this cause of action should be pled within Plaintiff’s Seventh Cause of Action for Negligence. Defendant cites Sierra-Bay Fed. Land Bank Assn. v. Superior Court (1991) 227 Cal.App.3d 318, 333-334 and Crusader Ins. Co. v. Scottsdale Ins. Co. (1997) 54 Cal.App.4th 121, 125 to supports its arguments.

Plaintiff cites Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1188-1189 to argue that a cause of action can be brought for negligence per se based violation of penal code §11166.

In Reply, Defendant reiterated the same arguments it made in its motion.

The Court finds Plaintiff’s argument more persuasive. Plaintiff can bring a cause of action for negligence per se based on violation of penal code §11166 if Plaintiff pleads sufficient facts.

Defendant’s citation to Sierra-Bay Fed. Land Bank Assn. is unpersuasive because it is not entirely on point. In that opinion, the court held that the plaintiff could not state a cause of action for negligence based upon the alleged violation of the Agricultural Credit Act of 1987. Here, the instant SAC is basing the negligence per se on a violation of penal code §11166, not the Agricultural Credit Act of 1987.

Defendant’s citation to Crusader Ins. Co. is also unpersuasive because it is not entirely on point. The opinion in Crusader Ins. Co. held that the Legislature, in enacting Ins. Code §1763, did not create a new private right to sue, and a regulatory statute does not create a private right of action in the absence of legislative intent to do sue and thus §1763 authorizes regulatory remedies only and does not give admitted insurers a private right to sue. Here, the SAC does not base any cause of action on the Insurance Code.

Plaintiff’s citation is more on point, as Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1184 allowed a cause of action for negligence per se based on the Child Abuse and Neglect Reporting Act. “For the reasons explained below, we hold Alec’s complaint states a cause of action under the doctrine of negligence per se based on the Child Abuse and Neglect Report Act (art. 2.5, §§11164-11174.3).” (Id.) Here, the instant complaint is basing the negligence per se claim on a violation of Penal Code §11166, which falls within 11164-11174.3.

            Negligence Per Se

“To state a cause of action under the negligence per se doctrine, the plaintiff must plead four elements: (1) the defendant violated a statute or regulation, (2) the violation caused the plaintiff’s injury, (3) the injury resulted from the kind of occurrence the statute or regulation was designed to prevent, and (4) the plaintiff was a member of the class of persons the statute or regulation was intended to protect. (Evid Code, §669.)” (Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1184-1185.)

(1)   Defendant Violated a Statue or Regulation

In relevant part, Plaintiff alleged as follows:

Plaintiff is informed and believes and based thereon alleges that Defendant FIVE ACRES, and DOES 1 through 100, knew or reasonably suspected, or should have known or reasonably suspected in the exercise of reasonable diligence, that the Doe Perpetrator had sexually molested, abused, or caused touching, battery, harm, and other injuries to PLAINTIFF, who was a minor living at, and in the care of, Defendant FIVE ACRES group home, and to other minors living at, and in the care of, Defendant FIVE ACRES group home, giving rise to a duty to report such conduct under Section 11166 of the California Penal Code. FIVE ACRES and DOES 1 through 100 failed to make such a mandatory report on a timely basis.

 

Plaintiff is informed and believes and based thereon alleges that Defendant FIVE ACRES, and DOES 1 through 100, were well aware of Doe Perpetrator’s specific propensities for sexual abuse. Defendant FIVE ACRES and DOES 1 through 100 received complaints against Doe Perpetrator for various incidents of sexual misconduct, because Doe Perpetrator victimized several other minors, in addition to PLAINTIFF. Despite receiving these complaints, Defendant FIVE ACRES and DOES 1 through 100 failed to make any complaints at all, either telephonically or in written form, to any appropriate child abuse reporting agency in California within 36 hours, or within any timely manner, as required by law, including California Penal Code § 11166.

(SAC, ¶81-82.)

 

Thus, Plaintiff sufficiently alleged the first element.

 

(2)   The Violation Caused the Plaintiff’s Injury

In relevant part, Plaintiff alleged as follows:

 

As a proximate result of Defendant FIVE ACRES’s failure to timely follow the mandatory reporting requirements of California Penal Code § 11166, and, separately, as a result of DOES 1 through 100’s failure in the same regard, PLAINTIFF and other youth assaulted by Doe Perpetrator at FIVE ACRES were wrongfully denied, and restricted from receiving, the protection of child protection agencies. These agencies would have changed the then-existing arrangements and conditions that provided Doe Perpetrator the access and opportunities to molest PLAINTIFF.

 

As a direct result of the wrongful conduct alleged herein, PLAINTIFF has suffered, and continues to suffer, among others, great pain of mind and body, shock, emotional distress, physical, cognitive, and behavioral manifestations of emotional distress, embarrassment, loss of self-esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer spiritually; was prevented and will continue to be prevented from performing PLAINTIFF’s daily activities and obtaining the full enjoyment of life; has sustained and continues to sustain loss of future earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling.

(SAC, ¶88 & 90.)

 

Thus, Plaintiff sufficiently alleged the second element.

 

(3)   The injury resulted from the kind of occurrence the statute or regulation was designed to prevent

In relevant part, Plaintiff alleged, “The physical, mental, and emotional damages and injuries resulting from the sexual molestation of PLAINTIFF alleged herein, were the types of occurrences and injuries the Child Abuse and Neglect Reporting Act was designed to prevent.” (SAC ¶89.)

 

Thus, Plaintiff sufficiently alleged the third element.

 

(4)   The plaintiff was a member of the class of persons the statute or regulation was intended to protect.

In relevant part, Plaintiff alleged, “Plaintiff was of the class of persons for whose protection California Penal Code §11166 was specifically adopted to protect.” (SAC ¶86.)

 

Thus, Plaintiff sufficiently alleged the fourth element.

 

Unavailing Argument
Defendant argues as follows:

 

Regardless of whether negligence per se is an independent cause of action, or simply can be a basis for plaintiff’s already existing negligence claim, there is no basis for the allegation to be made against Five Acres. The plain language of the statute at issue, the mandatory reporting law, confirms that an entity, like Five Acres, is not a mandatory reporter. See Penal Code § 11166. Rather, the duty to report is an individual duty. See Penal Code § 11166(i)(1) (“The reporting duties under this section are individual.”) Plaintiff’s attempt to circumvent this rule by alleging that the home violated the Penal Code through its employees. But there is no provision of the Penal Code that permits such an argument and certainly the Legislature could have added entities to the list of mandatory reporters, but it did not. It should also be noted that Plaintiff pled this same cause of action in the First Amended Complaint. Despite being given an opportunity to amend this cause of action and present case law in support, it remains nearly identical in the SAC.

(Demurrer,p.5.)

 

The Court does not find Defendant’s argument persuasive.

 

In relevant part, California Penal Code §11166 states:

Except as provided in subdivision (d), and in Section 11166.05, a mandated reporter shall make a report to an agency specified in Section 11165.9 whenever the mandated reporter, in the mandated reporter's professional capacity or within the scope of the mandated reporter's employment, has knowledge of or observes a child whom the mandated reporter knows, or reasonably suspects has been the victim of child abuse or neglect. The mandated reporter shall make an initial report by telephone to the agency immediately or as soon as is practicably possible, and shall prepare and send, fax, or electronically transmit a written follow up report within 36 hours of receiving the information concerning the incident. The mandated reporter may include with the report any nonprivileged documentary evidence the mandated reporter possesses relating to the incident.

(CA Penal Code §11166.)

 

Further, “mandated reporter,” is defined in §11165.7. This section includes many definitions for a mandated reporter. Relevant here, are the following definitions, “An administrator, board member, or employee of a public or private organization whose duties require direct contact and supervision of children, including a foster family agency.” (§11165.7(a)(8).) “An employee of a childcare institution, including, but not limited to, foster parents, group home personnel, and personnel of residential care facilities.” (§11165.7(a)(14).)

 

In the SAC, Plaintiff alleged as follows:

 

Defendant FIVE ACRES and DOES 1 through 100 include administrators and employees of an organization—FIVE ACRES—whose duties require direct contact and supervision of children, employees of a group home—FIVE ACRES, and psychiatrists, licensed nurses, marriage and family therapists, clinical social workers, professional clinical counselors, and similar mandated reporters employed by and/or otherwise affiliated with Defendant FIVE ACRES. Defendant FIVE ACRES and DOES 1 through 100 were and are “mandated reporters” within the meaning of California Penal Code § 11165.7.

(SAC ¶79.)

 

In the SAC, Plaintiff further alleged:

 

PLAINTIFF is informed and believes, and based thereon alleges, that Defendant FIVE ACRES and DOES 1 through 100 and their managing agents, officers, and/or directors authorized, adopted, or ratified the wrongful and unlawful conduct of their administrators, employees, subcontractors, and agents, including their failure to make the mandatory reports required by California Penal Code Section 11166, as described above, and/or are personally guilty of oppression, fraud, or malice. As such, Defendant FIVE ACRES is vicariously liable for any and all acts and omissions of its administrators, employees, subcontractors, and agents, including their failure to make the mandatory reports required by California Penal Code Section 11166, as described above, and PLAINTIFF is entitled to recover punitive damages from all Defendants in an amount according to proof.

(SAC ¶92.)

 


Defendant argues that “the plain language of the statute at issue, the mandatory reporting law, confirms that an entity, like Five Acres, is not a mandatory reporter. See Penal Code § 11166.”

 

The Court is not persuaded by Defendant’s argument because a “mandated reporter” is “an administrator, board member, or employee of a public or private organization whose duties require direct contact and supervision of children, including a foster family agency.” (§11165.7(a)(8).) “An employee of a childcare institution, including, but not limited to, foster parents, group home personnel, and personnel of residential care facilities.” (§11165.7(a)(14).) Plaintiff alleged in its SAC, “Defendant FIVE ACRES and DOES 1 through 100 include administrators and employees of an organization—FIVE ACRES—whose duties require direct contact and supervision of children, employees of a group home—FIVE ACRES, and psychiatrists, licensed nurses, marriage and family therapists, clinical social workers, professional clinical counselors, and similar mandated reporters employed by and/or otherwise affiliated with Defendant FIVE ACRES. Defendant FIVE ACRES and DOES 1 through 100 were and are “mandated reporters” within the meaning of California Penal Code § 11165.7.” (SAC ¶79.)

 

As stated in Opposition, and in paragraph 92 of the SAC, Plaintiff seeks to hold Defendant Five Acres liable through vicarious liability. Defendant appears to be attempting to argue that since Defendant is a corporation/entity and since the definition of “mandated reporter” doesn’t include a corporation/entity, “mandated reporter” only pertains to individuals. Or to phrase it differently, Defendant argues that Plaintiff cannot allege liability of the Defendant corporation through its employees because “certainly the Legislature could have added entities to the list of mandatory reporters, but it did not.”

 

Defendant has cited no case law to support this argument. The general rule of respondeat superior is as follows, “an employer is vicariously liable for the torts of its employees committed within the scope of the employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298.) Since Defendant has cited no case law that supports the position that vicarious liability is not applicable with the instant statute, the Court finds this argument unavailing.

 

Defendant also argues the duty to report is an individual duty, and Defendant cites Penal Code §11166(i)(1).

 

Penal Code §11166(i)(1) states:

 

The reporting duties under this section are individual, and no supervisor or administrator may impede or inhibit the reporting duties, and no person making a report shall be subject to any sanction for making the report. However, internal procedures to facilitate reporting and apprise supervisors and administrators of reports may be established provided that they are not inconsistent with this article. An internal policy shall not direct an employee to allow the employee's supervisor to file or process a mandated report under any circumstances.

(CA Penal Code §11166(i)(1)

 

The foregoing code section does not preclude vicarious liability in this situation.

 

TENTATIVE RULING
Defendant’s demurrer to the fifth cause of action for negligence per se for violation of penal code §11166 is OVERRULED.

 

 

MOTION TO STRIKE

RELIEF REQUESTED
Defendant moves to strike the requested prayer of relief for punitive damages.

Preliminary Matter
Moving party did not follow CRC 3.1322.

“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (CRC 3.1322.)

On Defendant’s notice page, all Defendant requests is to strike the prayer for relief for punitive damages. The prayer for relief of punitive damages is located in paragraph 2 of the prayer for relief. However, the motion itself only refers to the “prayer of punitive damages in relation to the 4th and 5th causes of action.” In Defendant’s conclusion of its motion, Defendant then states, “Moving Defendant respectfully requests that this Court grant this instant Motion to Strike Portions of Plaintiff’s Second Amended Complaint and strike Plaintiff’s prayer for relief for punitive damages as to the 4th and 5th causes of action.”

The Court notes that in Paragraph 76 of the SAC in relation to the fourth cause of action, Plaintiff alleges in relevant part, “As such, Plaintiff is entitled to recover punitive damages from all Defendants in an amount according to proof.” Further, in Paragraph 96 of the SAC in relation to the fifth cause of action, Plaintiff alleges in relevant part, “As such, Plaintiff is entitled to recover punitive damages from all Defendants in an amount according to proof.”

Meet and Confer
“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading.” (CCP §435.5(a).)

Moving party met and conferred. (Decl. Metros ¶2.)

MOTION TO STRIKE LEGAL STANDARD
Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

PUNITIVE DAMAGES
California Civil Code section 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . .” (Civ. Code § 3294(a).) Punitive damages thus require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.) “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (CCP § 3294(c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id., §3294(c)(2).) “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id., § 3294(c)(3).)

“An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (CCP §3294(b).)

ANALYSIS
As noted in the Opposition, moving party brings up the same arguments that were rejected in Defendant’s prior motion to strike. In particular, Defendant argues that: (1) Plaintiff did not allege malice, oppression, or fraud, (2) Plaintiff did not allege ratification by the corporate employer, and (3) Plaintiff did not allege punitive damages with enough specificity and did not identify a single employee by name, and Doe Perpetrator was not included as a defendant.

The Court does not find Defendant’s arguments persuasive. Plaintiff has pled facts sufficient at the pleading stage to potentially support a request for punitive damages.

In Plaintiff’s “Factual Allegations” section of the SAC that are incorporated into every cause of action, Plaintiff pleaded:

“PLAINTIFF is informed and believes, and based thereon alleges, Defendant FIVE ACRES, DOES 1 through 100-, and FIVE-ACRES’ employees knew or should have known, or were otherwise on notice that Doe Perpetrator had sexually assaulted PLAINTIFF on several occasions. There was a witness to at least one of the incidents in which Doe Perpetrator forced PLAINTIFF engage in oral copulation.” (SAC ¶20.)

“PLAINTIFF is informed and believes, and based thereon alleges, Defendant FIVE ACRES, and DOES 1 through 100, were aware of Doe Perpetrator’s propensities for sexual abuse. PLAINTIFF is informed and believes, and based thereon alleges, FIVE ACRES received multiple complaints against Doe Perpetrator for various incidents of sexual misconduct, because Doe Perpetrator victimized several other minors, in addition to PLAINTIFF.” (SAC ¶21.)

“PLAINTIFF is informed and believes, and based thereon alleges, that even prior to the sexual abuse of PLAINTIFF by Doe Perpetrator, Defendant FIVE ACRES, and DOES 1 through 100, knew or had reason to know, or were otherwise on notice of unlawful sexual conduct by Doe Perpetrator. FIVE ACRES’ employees knew or should have known that Doe Perpetrator had sexually assaulted many children in the past.” (SAC ¶22.)

“PLAINTIFF is informed and believes, and based thereon alleges, that FIVE ACRES, and DOES 1 through 100, have a pattern and practice of discouraging complaints made by youth in their care, and dismissing, without reason or proper investigation, claims of sexual abuse by children in their care. Defendants engages in this pattern and practice in order to conceal evidence of sexual abuse experienced by its residents and to forestall Department of Child and Family Services inquiries into the ongoing abuse at Five Acres. Defendants’ pattern and practice directly caused the sexual abuse suffered by PLAINTIFF in this action.” (SAC ¶23.)

“Moreover, even when PLAINTIFF’s mother informed a supervisor about Doe Perpetrator sexually abusing PLAINTIFF, his response was that PLAINTIFF “makes up stories when he thinks he’s in trouble.” In the presence of PLAINTIFF’s mother, the supervisor said to PLAINTIFF in a threatening manner, “The eye in the sky does not lie.”” (SAC ¶24.)

“After learning that there was video footage of PLAINTIFF orally copulating Doe Perpetrator, PLAINTIFF’s mother requested that FIVE ACRES, and DOES 1 through 100, review all security camera footage from PLAINITFF’s cottage. FIVE ACRES, and DOES 1 through 100, never responded to her request.” (SAC ¶25.)

Therefore, based on the previous citations from paragraphs 20-25 in the SAC, the Court finds that Plaintiff has adequately alleged conduct that could support a request for punitive damages, and Plaintiff has specifically plead malice, oppression, or fraud, as defined in Civil Code section 3294. (SAC paragraphs 76 and 96.)

As for ratification, Plaintiff sufficiently alleged ratification in paragraph 76 of the SAC for the fourth cause of action and paragraph 92 of the SAC for the fifth cause of action. Plaintiff also alleged ratification in paragraph 30 of the SAC.

Defendant also argued that “no employee of Five Acres is even identified by name. And, notably, the “Doe Perpetrator” was not included as a defendant himself.” The Court does not find this argument persuasive because Defendant has not cited any case law that Plaintiff must identify the employee by name or that Plaintiff must name Doe Perpetrator as a Defendant.

TENTATIVE RULING: Motion to strike is DENIED.